History of the Supreme Court
of the United States

CHAPTER I

CONDITIONS PRECEDING ITS ESTABLISHMENT :
THE ACQUISITION OF THE LARGE LANDED ESTATES



Although founded as an original institution, apparently new in itself and dissociated from any prior experiment, the Supreme Court of the United States was, nevertheless, the legatee, from its inception, of an antique body of laws and a mass of customs, traditions, views and conditions growing out of long-standing conflicting interests.

Isolated from what has preceded them as some institutions may appear, because lacking a direct titular ancestor, they are no more so than any of the other manifold evidences of human activity.  Their form may sometimes seem novel and unrelated, but their life principle and all of the display of instinct and conduct springing from it, have the most intimate connection with previous events, often reaching back to remote time.  Neither are established institutions accidental, capricious or aimless.  Their lineage is clearly traceable ;  and, imperfect as they may sometimes seem, they represent the definite expression at a particular time of a definite purpose to conserve certain ideas or conditions.  This much is axiomatic.  But at this point conventional historical inquiry stops without scrutinizing the growth and contests of antagonistic forces, and what special dominant section of those warring forces institutions thus established were designed to represent.  To ascertain these facts is a vital preliminary, essential to a clear knowledge of cause and effect springing from concrete economic conditions.

When the Supreme Court of the United States was organized, there was, to be sure, a distinct environment, as there is in all times and ages.  The environment then prevailing, however, was so fundamentally different from that related (or rather misrepresented) in the customary histories, that a narrative of it and the conditions leading up to it, is indispensable to a correct understanding of the history and career of the Supreme Court.  Once this link is supplied, the nature of the personnel, and the current of the policy, of that Court become clear, and present a continuous and comprehensible account, leaving nothing to the imagination, and no enigmas over which to puzzle.


Steadily, through more than a century and a half, the process of forming on the soil of America a landed and trading aristocracy, on the one hand, and on the other, a menial and dependent laboring and slave class, went on uninterruptedly.  Long before the outbreak of the Revolution, society was divided into various classes and these into grades, sharply defined from one another in law, as well as by extent of wealth or by tokens of rank or degradation.  With the very settlement of the country, the European system of land and trade frauds had been transplanted — that system of land seizure by which the feudal barons had aggrandized themselves, and that system of fraud in trade by which European merchants had grown rich.  Throughout New England, New York, Pennsylvania, Maryland, Virginia, the Carolinas and Georgia enormous estates were gradually acquired.  Some were obtained by fraud upon the Indians, or by bribing royal officials, or both ;  still others by the officials clandestinely using their authority to secure vast estates for themselves.


Fraud in Ancient Massachusetts.


Orthodox Puritan piety went hand in hand with the commission of frauds, if the laws of the day shadow the conditions prevailing.  In Massachusetts, then comprising also what is now the State of Maine and a portion of the present State of New York, the corruption of public officials became so general that an act was passed in the year 1645 imposing a penalty of £40 or whipping for corrupting any public official to deface the public records.1  For forging land deeds, the offending person was to pay the aggrieved party double damages ;  if he could not or did not he was to be publicly whipped and a “ Romaine F ” was to be burned in his face.2  The practices of the Puritan judiciary may be judged from Section ix, Act of 1635, which prohibited judges interested in civic causes, or related to the parties at action, from giving judgment.3

In Rhode Island the principal officials and elders were either seizing land, or by their official acts were awarding allotments to one another.4

The Connecticut Assembly was constantly passing laws directed at preventing land frauds ;  a supererogative attempt at virtuous conduct, inasmuch as many of the officials themselves were thus acquiring estates.


Conditions in Old Connecticut.


In May, 1667, the General Court of Connecticut, “ being sensible of the great trouble and contention that doth and may arise in this colony by reason of great defects that are found in records,” etc., found it necessary to pass an act aimed at forestalling frauds.5  A statute passed by the Connecticut General Court in May, 1717, sought to prevent frauds in seizing lands from the Indians ;  it ordained that no Indian title was good unless it had the approval of the Connecticut Assembly.6

The preamble of another law, enacted in October, 1718, declared its purpose to be the preventing of unlawful entries of vacant lands and the resulting alienations.  The act recited the prevailing frauds, “ whereby many persons have been greatly defrauded, great disorders occasioned, divers quarrels excited.”  The preamble went on to say that, because of these frauds, “the orderly settlement of plantations [is] frustrated ;  which mischiefs are likely to continue, and increase, unless sufficient remedy be provided.”  The land in question, the act said, belonged to the government and company of the Colony of Connecticut, by grant from the crown of Great Britain :  divers persons, under pretense of having a right and property in the lands, and without obtaining any legal conveyance from the corporation, had presumed to enter upon the lands and improve or sell them.  A money penalty was provided in the case of unlawful entry, and it was decreed that entry and possession did not make a title.7

The preamble of a fourth act, passed in October, 1722, reported that “ some persons have pretended to purchase of Indians their rights as natives of many considerable tracts of land.”  All such deeds when secured without the consent of the Assembly were, it was announced, ipso facto, void in law.  The lands, the act set forth, belonged to the colony ;  “ yet under color of such deeds, persons unacquainted with the said laws may be imposed upon, deceived and greatly wronged.”  A heavy specified money penalty was provided against those thus presuming to buy lands from the Indians, end the persons wronged could recover in court.8

Other acts, enacted in Connecticut in 1723 and 1729, brought joyous relief to many of the foremost men of the colony, who, before they had received any patent, had leisurely appropriated the common or undivided lands of the ancient towns, and had apportioned them among themselves.  The acts recited that “ many of the ancient proprietors have not only sold divisions so obtained, but also a considerable part of their interests and proportions in said common lands.”  The question had arisen whether these sales were valid — a question settled by the acts of 1723 and 1729 which confirmed them as legal ?9

In May, 1727, another measure was passed by the General Court of Connecticut :  “ An Act To Prevent Frauds, Quarrels, and Disturbances in Bargains, Sales, Leases or other Alienations of Land in this Government.”  By this law any person attempting to give or receive any fraudulent deeds was to forfeit one-half the value.10  Evidently, by the year 1723, the value of land in Connecticut had greatly increased ;  the preamble of an act passed in October of that year states that “ whereas, in the first settlement of this colony land was of little value in comparison with what it is now,” etc.11

These details as to how lands was appropriated in early settlement times, while apparently bearing no close relation to the establishment and functions of the Supreme Court of the United States, are of cognate importance, for it was from these conditions that the predominant class of that era and of later times — the owners of the landed estates — rose to great wealth and potency.  Between the methods here described, the possessions obtained by means of them, and the precedents, laws and interests erected on them, on the one side, and the composition, character and policy of the Supreme Court of the United States, as it was first constituted, on the other, there was the most intimate association, as will be clearly seen.


The Whole of New Hampshire Appropriated.


When, after his appointment as Captain-General and Governor of Massachusetts Bay, New York and other provinces, the Earl of Bellomont arrived in New York, he quickly learned of widespread, popular discontent with the methods by which great areas of land were being seized by enterprising and unscrupulous individuals, or were being obtained by bribery.  The proprietorship of what is now the State of New Hampshire was claimed by Colonel Samuel Allen, who had bought for £250 the claims of Captain John Mason, a director of the Plymouth Company.  In surrendering their charter in 1635, the directors of that company had divided their territory among themselves individually ;  by lot, the ownership of New Hampshire went to Mason, who, some years previously, had obtained a patent to the same area from the company, the patent having been confirmed by King Charles I.  Securing his appointment as Governor of New Hampshire in 1692, Allen declared the whole province his personal property.

Threatened with action for trespass, the settlers appealed to Bellomont, who investigated.  Communicating to the Lords of Trade, June 22, 1700, Bellomont denounced Allen’s title as unsound, and charged Allen with having attempted to get a confirmation of the claim by offering him, Bellomont, a bribe of £10,000 in money — an offer repeated three or four times.12  Allen claimed eight or nine hundred thousand acres, valued by Bellomont at more than £3,000,000 ;  Allen himself told Bellomont that he estimated the quit rents alone at £22,000 a year, not to mention the great value of the improved rents.

“ And all this,” added Bellomont, “ besides the woods, which I believe he might very well value at half the worth of the lands.  There never was, I believe, since the world began, so great a bargain as Allen had of Mason, if it be allowed to stand good, that all this vast estate I have been naming should be purchased for a poor £250, and that a desperate debt, too, as Col. Allen thought. . . . If Col. Allen shall at any time goe about to make a forcible entry on those lands he pretends to (for, to be sure, the people will never turn tenants to him willingly) the present occupants will resist him by any force he shall bring, and the Province will be put to a combustion, and what may be the course I dread to think. . . .” 13

Mason, however, had left an heir who contested Allen’s claim.  In the long litigation ensuing, Allen was several times defeated, the last time in 1715.  Allen’s death was followed by that of his son ;  and after sixty years of turbulence and actions at law, the whole contention became outlawed, to the huge relief of New Hampshire settlers.14


Maine Claimed as a Private Estate.


The entire territory of what is now the State of Maine was claimed as his private property by Sir Fernando Gorges, who, for betraying the Earl of Essex to Queen Elizabeth, had received rich rewards.  The claim descended to Gorges’ grandson, Fernando Gorges, who, on March 13, 1677, sold it to John Usher, a Boston merchant, for £1,250.  Usher soon learned that the British government had been contemplating opening up the province to settlement ;  he, therefore, wisely turned over his deed to the governor and company of Massachusetts of which colony it remained a part until its creation as a State in 1820.15


The Practices in Pennsylvania.


Fraud in the acquisition of land was so notorious in the seventeenth century, that section 20 of the laws originally agreed upon and adopted by William Penn and his followers before they left England, in May 1682, stated that, to prevent frauds and vexations within the province of Pennsylvania, all conveyances were to be enrolled or registered within two months ;  else they were to be void.  A man of extremely gentle character and unselfish in many respects, Penn did not, however, neglect to make ample provision for his personal fortune.  Nor was it solely, as certain historical writers put it, the desire for religious freedom that urged Penn and his Quaker band to settle the wilds of Pennsylvania.

On July 11, 1681, Penn signed a contract — or, as it was termed, “ certain conditions or concessions ” — with a group of specified adventurers for their “ mutual advantage.”  The ninth condition declared that “ in every 100,000 acres, the governor and proprietary, [Penn] by lot, reserveth ten to himself, which shall lie but in one place.”16  By this condition an enormous private estate became vested in Penn and his descendants, and caused the greatest mischief.  In addition, Penn’s heirs, or proprietaries, set up a claim to the whole of the soil contained within the bounds of the original charter.  Nearly a century later17 the Legislature of Pennsylvania felt itself compelled to denounce the manner in which the Penn family had perverted and abused the terms of the charter granted to William Penn.  The resolution declared that, although the charter was given and held “ for the great ends of enlarging the bounds of human society, and the cultivation and promotion of religion and learning,” and although “ the rights of property, and powers of government, vested in William Penn and his heirs were stipulated to be used and enjoyed as well for the benefit of settlers, as for his own particular emolument,” nevertheless the proprietaries had set up claims and had reserved quit rents and purchase money upon all grants of land — acts which “ cannot longer consist with the safety, liberty and happiness of the good people of this commonwealth. . . .”18

The succession of laws passed under the governorship of William Penn indicate the prevalent practices, and show that, to some extent in Pennsylvania, the same method of getting land by fraud and other illicit acts obtaining in New England and elsewhere, were common.  A law, decreed on February 7, 1700, dealt with “ defacers of charters.”  It provided that whosoever should forge, deface, corrupt or embezzle any charters, gifts, grants, bonds, wills, conveyances or contracts, or who should deface or falsify any enrollment, registry or record, should forfeit double the value of the damage thereby sustained, one-half of the damages to go to the party wronged.  The offender should be discarded from all places of trust, and be publicly disgraced as a false person, in the pillory or otherwise, at the discretion of the court.19  That such a law was adopted indicates its necessity.

Another act, passed in the same year, tells of frequent overmeasure in the survey of land “ through the negligence, ignorance or frauds of the surveyors or chain-carriers, and many surveys have thereby been made erroneous.”20  It would appear that, while the highest dignitaries in the province were themselves obtaining great estates by extra-legal means, they were, at the same time forbidding the common run of people from doing likewise.


The State of Affairs in Virginia.


In Maryland and Virginia, great estates were secured by the influential few by the most fraudulent methods ;  this was particularly so in Virginia, which then included an immense area.  By the Virginia general land act of 1705, the right of extensive landholding was made dependent upon servant or slaveholding.  No one was allowed to take up more than 5,000 acres unless he owned five or more titheable servants or slaves, in which case he was permitted to secure two hundred acres more for each servant or slave titheable.  The same act aimed to prevent further land grabbing on a large scale by prohibiting grants of more than 4,000 acres, with a qualifying clause in favor of entries previously made for larger areas.  If premises settled by inferiors and others were not seated and planted within three years from the date of the grant, the grant was void.  Each free immigrant had an importation right to fifty acres, and another fifty acres were allowed for his wife and child.  Payments for land could be made in tobacco.  The provisions of this act were either ignored or evaded when it suited the interests of the influential class, or were altered by the further Acts of 1710, 1713, 1748, 1779 and those of other years.

“ Although,” says an old legal treatise on the subject, “ it nowhere appears on the statute books, yet it is known that the Governor and Council, exercising the general powers of the crown, were in the practise of granting leave to individuals and companies to locate large tracts of land, by orders to that effect entered on their journal ;  and there were also some grants of lands, as compensation for military service by royal proclamations.  The grants for military service are confirmed after the Revolution, and such entries in the council books as had been executed by actual surveys were also recognized, but all the rest are annulled.”21


Vast Tracts Fraudulently Granted.


The methods by which great grants of the most valuable land in Virginia were obtained may be illustrated by the Vanmeter and other grants.  On June 30, 1730, John Vanmeter of New York, was allowed to take up 10,000 acres on the Shenandoah River, for settlement by himself and his family of eleven children.  As soon as he should bring in twenty families for settlement, he was to receive a grant of 20,000 additional acres (not previously located by Robert Carter, Mann Page or others) on the fork of the Shenandoah and Cohongaroota rivers.22  He was allowed two years in which to complete this entry, and in the meantime all other persons were forbidden on the lands.  By another order of the Council the grant was enlarged to 40,000 acres.

Without fulfilling the terms of the grant, the Vanmeters, in 1731 — a year after the grant — assigned their rights to Joist Hite and Robert M’Coy of Pennsylvania.  On October 1, 1731, Hite and M’Coy petitioned the Council :  That they and their families and a hundred other families were desirous of removing to Virginia, and prayed a separate grant of 100,000 acres of land.  An “ Order in Council ” was graciously entered, granting their petition :  thus Hite and M’Coy were allowed to enter the full 140,000 acres.23

But the whole of this area lay in the Northern Neck of Virginia, claimed by Lord Fairfax, who, in 1736, entered a caveat against the issuing of a patent to them.  A litigation between the contestants and their heirs or lessees ensued which lasted for nearly half a century, Fairfax’s opponents generally winning in court, and compelling Fairfax at one time — in 1771 — to appeal to King George III in Council.24  The final settlement is not clear from the records.

Under pretext of colonizing the land, great stretches of the most accessible and valuable regions were thus acquired, and were soon formed into large estates, creating in their owners extensive powers of control of local government.

The Virginia court records attest that corruption and collusion were customary methods in obtaining land grants.  One such case, for example, as stated in the court’s statement of the case, disclosed these facts :  That Wood Jones, in the year 1743, obtained an Order in Council for surveying 2,000 acres of land, and that, pending the dispute between Virginia and Governor Dinwiddie, he fraudulently paid the pistole fee demanded by the governor, and obtained a patent, notwithstanding that Jones’ land patent covered lands patented to one Hatcher, in 1740.  The Virginia High Court of Chancery stated that the grant to Jones was secured surreptitiously ;  that the officer who consummated the business either did not know that Jones’ patent included another’s land, or it was obtained by collusion between official and grantee.25


A Group of Lords Become Feudal Proprietaries.


Much of the richest land in Virginia, especially that territory in what was called the Northern Neck, was originally granted by Charles II when he was a fugitive, and confirmed by James II after he (James) had ceased to reign, to such favorites as Lord Hopton, Lord John Culpeper, Lord John Berkeley (then Sir John Berkeley), Sir William Morton (one of the justices of the King’s bench), Dudley Wyatt and Thomas Culpeper.  They surrendered the grant in order to have it renewed with extensions.  The grant conferred on them the exclusive ownership of the Rappahannock and Potomac rivers in that section.  It gave them all the islands, woods, underwoods, timber, fishings, royalty of hawking and hunting, mines of gold and silver, lead, tin and other metals, quarries of stone and coal, etc., to have, hold and enjoy forever, and transmit to their heirs.

Superadded to the grant were certain conferred powers of feudal baronial dominion, by which the grantees could create manors, hold baronial court, could be patrons of churches, nominate all ministers, receive all fees and emoluments, and possess themselves of goods of felons and fugitives, escheats and forfeitures.26  They were empowered to give, grant or alienate all the granted land to anyone willing to buy, and were allowed a generous twenty-one years in which to settle their domain ;  otherwise a certain part of the grant was to be voided.27  General jurisdiction of the vaguest kind only was reserved to the Governor, Council and Assembly of Virginia.  For this absolute lordship, the grantees were, by the charter, required to pay to the crown in annual rent only a paltry six pounds, thirteen shillings and fourpence “ in lieu of all services and demands whatsoever.”  A one-fifth part of all gold mined, and a one-tenth part of all silver, were also reserved to the Crown.


Lord Fairfax Grants 300,000 Acres to Himself.


The intention of most of the members of the group of dissolute favorites to whom this rich present was given was to convert it into money to squander in England.  His associates bought out Lord Hopton’s interest ;  they in turn sold all their rights to Lord Thomas Culpeper, who became sole owner and proprietor in fee simple.  Culpeper, in 1736, obtained a confirmation from the Virginia Assembly, and a release from the twenty-one year condition.28  As the heir-at-law of Lord Culpeper, Lord Thomas Fairfax became the sole absolute proprietor, and his tenants were under “ servile, feudal and precarious tenure.”  By the act of the Virginia Assembly, in 1748, all grants made by Fairfax were confirmed to the patentees, but they were to pay him rents, services and emoluments.29

So much, for the present, for these chronological facts ;  their great importance to the subject of this work will be dealt with later.  At the time Fairfax inherited his domain, it was generally supposed that his power, in British and Colonial law, was merely a delegated power of sovereignty, to be exercised for the benefit of legitimate settlers.  But Fairfax showed how this supposition could be evaded ;  it was quite simple, as he demonstrated, to vest a huge new estate in himself by a little circumlocution.  On one occasion he made a grant of 300,000 acres to Bryant Martin, his nephew and agent.  Martin promptly and fraudulently reconveyed it to Fairfax, who laid out the whole as a splendid manor.30


Lavish Distribution by the Virginia Council.


It was by means of these “ Orders in Council,” given by members of the Virginia Council to themselves, or often fraudulently or corruptly granted to others, that nearly all the extensive Virginia estates were obtained.  The manorial estate of Robert Carter, for instance, was thus secured, embracing 60,000 acres of land in Westmoreland County and in other counties ;  the seat of the estate was Nomini Hall, a great colonial mansion in Westmoreland County.  Built between the years 1725 and 1732 of brick covered with strong white mortar, this manorial seat was seventy-six feet long and forty wide, and was of unusual magnificence for the time.

Carter’s possessions were so large and valuable that he was called “ King ” Carter.  His domain descended by entail to his grandson, Robert Carter, who, in addition to his landed estate, owned six hundred negro slaves, a flour mill near his mansion capable of milling 25,000 bushels of wheat a year, and was proprietor in part of an iron works in Baltimore.31

Another “ Order in Council,” June 12, 1749, gave to “ a numerous company of adventurers,” calling themselves the Loyal Company, license to take up and survey 800,000 acres of land, beginning at the North Carolina line and running westward to the Mississippi River ;32 and on October 29, 1751, another body of speculators, styling themselves the Greenbrier Company, were given a grant of 100,000 acres.33

Two of the leading members of the Loyal Company were Nicholas Lewis and Edmund Pendleton, both of whom by reason of the illicit profits from their speculations, became men of considerable wealth and great influence ;  Pendleton ascending after the Revolution, to the presidency of the Virginia Court of Appeals — a juridical post he long occupied,34 and in which he was called upon to decide many important land disputes.

Although having anything but a clear title, and fully aware of conflicting claims to part of the land granted it, the Loyal Company hurried its surveys, and rushed ahead to sell many tracts to settlers at the rate of £3 per hundred acres.  Caveats were filled by various persons claiming prior ownership.  The greatest bitterness prevailed on the part of competing claimants and settlers, the one denouncing the company as an unprincipled band of speculative and corrupt usurpers, and the other asserting that they had bought nothing but bad titles, which they had to spend good money to defend.


The Operations of the Loyal Company.


The ensuing litigation delayed the completion of the Loyal Company’s surveys within the term required by the condition of the grant.  But this difficulty was easily solved by the Virginia Council, every member of which, it was suspected, was interested in the grant ;  an “Order in Council ” was issued on June 14, 1753, granting the Loyal Company four more years in which to complete its surveys.  The company then resumed its locations, and its sales to settlers, until the French and Indian war breaking out, an irruption of Indians drove the settlers away.  That war over, both the Loyal Company and the Greenbrier Company petitioned Governor Dinwiddie and the Council to renew their grants with a further term of four years for the completion of surveys and the purchasing of rights.

In the meantime, under Governor Dinwiddie’s proclamation of February 19, 1754, George Washington, on behalf of himself and other officers, secured a grant of 200,000 acres of land, for military services.  This tract covered part of the area supposed to have been forfeited by the Loyal Company and the Greenbrier Company for non-performance of conditions.  The two companies sought by every possible method to have their term extended.

But although some of their members were among the foremost politicians and men of wealth in Virginia, the royal officials dared not grant it, in view of a stern proclamation issued by George III, at the Court of St. James, on October 7, 1763.  This proclamation, the result of many Indian outbreaks and wars and massacres, declared it to be essential to the security of the colonies that the Indian tribes should not be molested or disturbed in their hunting grounds.  Whereas, “great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests, and to the great dissatisfaction of said Indians,” the purchasing of lands reserved to the Indians was strictly prohibited.35  In the face of this decree the Governor and Council decided, on May 25, 1763, that they could not grant the petition of the two companies.36

But the Loyal and the Greenbrier companies claimed an inalienable vested right in their grant.  Was their fault, they argued, that Indian hostilities had disturbed their operations ?  Could they be held accountable for non-performance of conditions because of the irruptions of Indians ?

They did not, of course, mention that it was the long continuing abuses to which the Indians had been subjected that had driven the tribes to warfare ;  and if such a plea had been put forth in counter argument, it would not have been listened to in any court of law, for, by the old laws of Virginia, Indian captives had long been held legitimate objects of slavery.  The Virginia act of 1672 speaks of Indian slaves or servants for life ;  the act of 1679 declared that Indian prisoners taken in war should be free purchase to the captor ;  the act of 1685 decreed that all Indians whose parents were not Christians at the time of their purchase, and all Indians, which (this was the pronoun used, not who ;  Indian slaves were held to be property, not persons) were sold by neighboring Indians to the whites as slaves, “ are deemed as slaves to all intents and purposes.”  And although the Virginia act of 1705, according to a decision of the Virginia Court of Appeals, in 1793, had completely repealed all former laws, and had released all American Indians from a state of slavery, yet the servitude of Indians long prevailed.37


Washington’s Grant Conflicts with the Loyal Company’s.


When, in 1773, George Washington and the other officers and soldiers claiming to be entitled to their grant under Dinwiddie’s proclamation, sought to have it confirmed, the Loyal Company and the Greenbrier Company came forward with a claim of prior vested rights, and objected to surveys on the land claimed by them.  Finally, on December 16, 1773, an “ Order in Council ” was issued, recognizing the claims of the companies as valid and giving the soldiers land elsewhere.38  The promoters of the company were extremely influential in both the Legislature and in the courts ;  and an act was secured without difficulty from the Legislature in May, 1779, apparently confirming only the lands actually surveyed, upon which, we are told, the Loyal Company “handed in very numerous surveys.”39  At the same time various other grants were confirmed, among them one of 28,627 acres to John Savage and others.

The precedent thus set in the case of these companies, and the arguments then used, proved to be, as we shall see, of the most stupendous importance in the decisions of the Supreme Court of the United States in the nineteenth century — decisions by which tens of millions of some of the most valuable public agricultural, coal, iron, timber and grazing lands, and gold, silver, copper and other mineral lands were alienated into large private holdings.


Enormous Feudal Estates Established in New York.


In New York and New Jersey far more extensive estates were granted by official favoritism or were obtained by bribing royal officials.

During the period under Dutch rule, when the province of New York and adjacent territory was called New Netherlands, the directors of the Dutch West India Company, all of them Amsterdam merchants, secured great domains.  For a few “ duffels, axes, knives, and wampum,” paid as purchase price to the Indians, the agents of Kiliaen van Rensselaer, an Amsterdam pearl merchant, bought, in 1630, a tract of land twenty-four miles long and forty wide, on the west bank of the Hudson.  The estate comprised, it was reckoned, seven hundred thousand acres, and included what are now the counties of Albany and Rensselaer, a part of Columbia County, and a strip of the present State of Massachusetts.40  Two other directors, Godyn and Bloemart, obtained great feudal estates in what is now New Jersey ;  one of these estates extended sixteen miles both in length and breadth, forming a square of sixty-four miles.41 These estates to the Patroons carried with them absolute feudal rights ;  the unquestionable sovereign rights of proprietorship, the right to decree laws, and the exercise of “high, low and middle jurisdiction,” and the appointment of all officials.  The Patroon was also given the power of policing his domain with his own armed forces.  All of these powers he could exercise “ according to his will and pleasure.”42  From such conditions originated in America the great wealth and power of the Van Rensselaer family, which was so potent before, during, and after the Revolution, and which, as we shall have occasion to note, had great influence upon the bench of the Supreme Court of the United States.


Great Manorial Estates Secured by Bribery.


After the capture of New Netherlands by the British, and its transformation in name to New York and New Jersey, vast estates were obtained by the outright bribery of the royal Governor Fletcher.  Lord Bellomont, Fletcher’s successor, in a communication dated November 28, 1700, to the Lords of Trade in London, specified how it was that many of these estates had been granted.

For a bribe of £100, according to common report, as stated by Bellomont,43 Captain John R.N. Evans, of the royal warship Richmond, secured a grant forty miles one way and thirty another, on the west bank of the Hudson River from the present town of Haverstraw to the town of New Paltz in Ulster County.  Nicholas Bayard, the founder of an influential and aristocratic family, received from Fletcher a grant forty miles long and thirty wide, on both sides of Schoharie Creek.44  To Colonel William Smith was granted an estate fifty miles long on Nassau — now Long Island.  In one year Smith cleared £500, the proceeds of whales captured there, as he admitted to Bellomont.45

From Fletcher, Henry Beckman received the grant of one estate sixteen miles long in Dutchess County, and of another estate twenty miles in length along the Hudson River, and running eight miles inland, which particular estate was valued at £5,000.46  By Fletcher’s grant Peter Schuyler, Godfrey Delius and associates conjointly secured a grant fifty miles long in the Mohawk Valley, valued by them at £25,000.  It was a grant, wrote Bellomont, which “ the Mohawk Indians have often complained of.”

Here was the origin of the wealth of the Schuyler family, which later, directly and indirectly, was such an important factor in influencing the course of the Federal Constitutional Convention, and that of the Supreme Court of the United States.  Bellomont wrote to the Lords of Trade that it was charged that Fletcher had got at least £4,000 in bribes by his “ intolerable corrupt selling away the lands of this province.”47


The Origin of the Livingston Estate.


It was during this time, also, that another powerful family and fortune were being founded which later exercised a vast influence on American politics, and had its representatives on the Supreme Court bench.

The younger son of a poor exiled clergyman, Robert Livingston curried favor with one official after another, changing his politics whenever his self-interest demanded it, and held lucrative official posts for half a century, generally filling several offices at the same time.48  In fact, offices were created by Governor Dongan apparently for his sole benefit.  He also by the same favoritism became an army contractor, and the saying was current of him that he made a fortune “ by pinching the bellies of the soldiers.”

In his “ Albany Chronicles,” Reynolds says that Livingston was in collusion with Captain Kidd, the sea pirate, and that Livingston loaned money at ten per cent.  By grace of the royal governors, and by means of his own practices, Livingston, before his death at the age of seventy-four years in about the year 1728, had managed to become the lord of a manorial estate sixteen miles long, and twenty-four miles wide.  On this estate he built flour and saw mills, a bakery and a brewery, and exercised feudal jurisdiction.


Futile Attempts at Confiscation.


Lord Bellomont made determined efforts to have these great estates confiscated.  But he found, as he wrote November 28, 1700, to the Lords of Trade, that the Assembly of New York was largely composed of the very landed magnates whom he sought to overthrow.  He set forth the grievances of the actual settlers, that they could get no land, and their objection to becoming “ a base tenant to Mr. Delius, Colonel Schuyler, Mr. Livingston, and the others of the whole role of our mighty landgraves.” Bellomont applied for a peremptory order of the King or an act of Parliament for the confiscation of these extravagant and corrupt grants given by Fletcher and other governors.  Unless, Bellomont added, “the power of our Palatines, Smith, Livingston, the Phillipses, father and son and six or seven more were reduced . . . the country is ruined.”49

The Phillipses referred to were Frederick and his son Adolpus, who had received an immense grant of land in what is now Putnam County, new York.  Fredrick Phillips was the employer of the sea-pirate, Captain Samuel Burgess, of New York, who, at first, was sent out by Phillips to Madagascar to trade with the pirates, and then soon turned pirate himself.  The first voyage yielded Phillips and Burgess £5,000, the proceeds of trade and slave-snatching ;  from the second voyage they cleared £10,000 and three hundred slaves.

Marrying a relative of Phillips, Burgess continued piracy.  Caught and imprisoned in Newgate, Phillips spent large sums of money to save him from death and finally succeeded.  Burgess, however, resumed piracy, and met death from being poisoned in Africa while carrying off slaves.50

We shall have need of recurring to the Phillips’ estate in a later chapter dealing with the means by which John Jacob Astor, in virtue of a noted Supreme Court decision, obtained part of it.

As a concession to Bellomont’s urgent and repeated remonstrances to England, the New York Assembly annulled at least two of Fletcher’s corrupt grants, but most of the extensive grants remained intact, causing popular uprisings in later generations.  The corrupt, interested, intrenched forces against Bellomont were many and too powerful.  The justices of the courts were either men of the large landholding class, or their servitors.  Lewis Morris, Chief Justice of the Province of New York, was removed from office by Governor William Cosby for (among other accusations) sitting in his own cause in land and other cases.  Morris denied these charges in a pamphlet published in 1735.51  Doubtless his defense was not altogether without its extenuating features, inasmuch as Cosby himself was one of the large landholders and very active in presenting grants of estates.  Perhaps the interests of competing landholders collided, and Morris serving one side, was made to suffer.  Morris was later appointed Governor-General of New Jersey.


Continuing Corruption of Royal Officials.


To put a stop to the “extravagant grants” of land by royal governors to favorites, accessories or bribers, Bellomont had proposed to the Lords of Trade that no grant of more than a thousand acres be made to any man, except, in the case of larger grants, by special leave of the king.  He also recommended placing a quit rent of half a crown on every hundred acres, this sum to go into the royal treasury.  It was not until subsequently that, in order to avert abuses and consequent popular dissatisfaction, a royal order was issued limiting to two thousand acres the amount of land to be granted to any one occupant or settler.  But this law was easily evaded ;  the royal officials continued to pervert their authority by fraudulently securing for themselves by indirection great estates of the most valuable land, or corruptly gave them to others, as is evidenced by the following examples, recited in the court records :

In 1737, George Clarke was Lieutenant-Governor of the Province of New York, in which official capacity he was member and vice-president of the Colonial Council of the province.  To this council the king intrusted the power of granting lands for occupation and settlement, subject to the two-thousand-acre limitation.  At a meeting of the Colonial Council at Fort George, on August 2, 1737, at which were present Clarke, Chief Justice Kennedy of the Provincial Courts, Courtlandt, Kane and Horsmander, all members of the Council, Clarke presented a petition of William Corry, who had recently emigrated from Ireland.  The petition set forth that there was a large tract of crown land in Mohawk County ;  that he, Corry, had engaged to bring a number of families from Ireland, and he, therefore, applied for a grant of 100,000 acres for himself and for such other persons as he should name, the names to be inserted by him in the grant.


How Lieutenant-Governor Clarke Secured a Large Estate.


When this petition was presented, Clarke left the room.  During the time that he was absent, the other members of the Council agreed that Clarke should grant the petition for 100,000 acres.  An order was accordingly made to that effect by the Council, and a survey ordered.  Cadwallader Colden, then the surveyor-general of the province, with Clarke and Receiver-General Archibald Kennedy, were the King’s regular commissioners for setting out all lands granted.  They were instructed to make out the grant to Samuel Heath, William Crosby (Sheriff of New York), Francis Sylvester and nine others named by Corry as trustees, to, and for, his use ;  in the grant Corry had 26,000 acres specifically made out for himself.

Nearly a century later, Levi S. Chatfield, then Attorney-General of New York State, in bringing suit against George Clarke, a rich and powerful descendent of Lieutenant-Governor Clarke, for the annulment of that ancient grant and for the recovery of the lands to the State, recounted the preceding facts, and further set forth :  That after the patent was issued, it was discovered that all the names of the grantees, except Corry, were used in joint trust for Corry and Lieutenant Governor Clarke ;  that there was an agreement between Clarke and Corry by which Clarke “ should pay half the charges and expenses of surveying the said land, and of procuring the patents, and should be interested in one-half the grant of 100,000 acres of land ;  and that one equal moiety of the 25,400 acres granted by the aforesaid letters patent to the said William Corry and his associates, were so granted in trust for the said Lieutenant-Governor George Clarke ;  and that, in compliance with the agreement and trust, the said William Corry, by deed of release to the said Lieutenant-Governor George Clarke, dated February 18, 1738, released to the said George Clarke, his heirs and assigns forever, 12,700 acres in, and the moiety of the said premises granted in, and by, the said grant or letters patent.”52

Attorney-General Chatfield further averred that Corry’s petition was false and fraudulent ;  that none of the grantees had ever removed from Ireland ;  that the names of everyone, except his own, had been fraudulently used by Corry ;  that Clarke had concealed from the members of the Council and from the Crown his own interest in the transaction ;  that the whole proceedings were a fraudulent device to evade the two-thousand-acre restriction ;  and that no settlers were ever brought on the land.53


Sir William Johnson’s Methods.


Another such example of royal officials fraudulently getting or giving large estates by exercise of their authority was that of Governor Sir Henry Moore, of the Province of New York.  Herman Le Roy, William Bayard and other powerful, rich men claimed that they were the owners of a certain 25,000 acres in the present Montgomery County, New York.  This land had been claimed and improved by settlers.  But Le Roy and Bayard could produce no title papers of any kind ;  the records, according to their assertions, had disappeared.  Not being able to bring forward written proofs, they filed a bill in court, in 1798, making this remarkable confession of facts as justifying their claims, and disproving those of the settlers :

That, on February 2, 1768, Governor Moore officially bought 25,000 acres in what is now Montgomery County for the alleged use of twenty-five specified settlers.  But their names were really used to evade the one-thousand-acre law ;54 the so-called settlers were, the bill charged, actually used as dummies for Sir William Johnson, and had an agreement with him by which he paid all expenses, and by which they were to turn over the 25,000 acres to him.  Sir William Johnson paid upwards of £600 in fees, and the whole tract was conveyed to him in fee simple.55  On June 11, 1772, Johnson, for £375, conveyed 10,000 acres to Lord A. Gordon ;  another 2,000 acres to John Kelly ;  and by his will, dated 1774, Johnson bequeathed the remaining 13,000 acres to his two brothers and four sisters.  Lord A. Gordon, on December 5, 1792, conveyed the 1o,000 acres to R. and J. Watts who, on the same day conveyed the tract to Herman Le Roy and William Bayard.  The particular explanation of the lack of title papers, in this case, as in similar cases, was that at the outbreak of the Revolution, Johnson’s son buried the title papers ;  that they became lost or illegible ;  and that nine of the defendants, knowing this, tried to get the whole property and title.

In deciding this case in favor of Le Roy, Bayard and the other appellants, at Albany, in February, 1798, Judge Benson not only made no attempt to refute the plea made by the claimants, Le Roy and Bayard, of the original fraud, but he made light of it.  The supposed illegality, said he, of the agreement between the original patentees and Sir William Johnson consisted in its being in contravention of the instructions from the king to the governor, restraining the patents for land to a stated quantity.  “The futility of this regulation,” added Judge Benson, “was soon discovered, and the instruction was for nearly half a century before the patent mentioned in the bill issued considered altogether as a dead letter, and a compliance with it a mere matter of form. . .”56  Le Roy, Bayard and the other personages in whose favor Judge Benson decided were men of the greatest wealth and highest station in the society and politics of the day.  They were intimate personal friends and close business associates of John Jay, the first Chief Justice of the Supreme Court of the United States, and as we shall see in Chapter V, Jay, when special envoy of the United States to Great Britain, asked his friend Nicholas Cruger to let Le Roy and Bayard share in a certain “ golden plan ” for making “ millions sterling.”

If Judge Benson’s premises were correct that the law had remained a dead letter, why had the beneficiaries taken such pains to circumvent it ?  By the people at large, Benson’s decision was regarded as another skillful theory of justification in behalf of the great landowners then everywhere seeking (and successfully so) to secure that which had been obtained by fraud, and to aggrandize themselves still further.  Judge Benson’s vote in connection with another notorious transaction is described later in this work.


John Jacob Astor Secures Land Obtained by Fraud.


A third instance of the fraudulent activities of royal governors in New York in the eighteenth century was that of two grants in fee, one grant of 18,000 acres in what was then Albany County, on March 25, 1768, ostensibly to Michael Byrn and eighteen others, and a second grant of 25,000 acres on May 8, 1770, to Sir William Johnson and twenty-five other persons.  A quarter of a century later John Jacob Astor and two associates contended in court that not the occupying settlers but they were the real owners of these tracts of 43,000 acres.  Astor and his associates could not show a single title paper.  In support of their claim they put forward these “ facts,” evidently not apprehensive in the least that such a defense would militate against them.

That, when the two grants were made, Johnson paid all the fees ;  that the alleged settlers were simply his tools, and their names were inserted for his benefit, with the express intention of releasing to him the whole of the tract, which, in fact, was later turned over to him in fee.  The appellants in this case — John Jacob Astor, William Laight and Peter Smith, — declared, through their attorney, Aaron Burr,57 that they had a regular title to the two tracts, one of 18,000, the other of 25,000 acres, from Sir William Johnson’s executors, who, it was set forth, had power to sell.

The lower courts had decided in favor of John Morgan, Jonathan Danforth and thirty-three other settlers.  As their principal defense, when the case came up on appeal, Astor and his partners in the transaction made the explanation that early during the Revolution, Johnson’s papers were put in an iron box and buried in the earth ;  that there they moldered, spoiled and became unrecognizable ;  and that the settlers, knowing this, sought to get title and property.  The decision in the Court for the Trial of Impeachments and the Correction of Errors, at Albany, in February, 1799, was in favor of Astor and his fellow appellants, on virtually the same grounds as in the preceding case.58  The settlers were promptly dispossessed.


Also Plead Fraud in justification.


Further facts disclosing official fraud and collusion in the granting of large estates came out in the similar case of Herman Le Roy, William Bayard and others against Peter Servis and other settlers in the same court, in 1801, on an appeal from a decision in favor of Servis.  The bill of Le Roy and Bayard filed in court asserted in justification of their claim that, in 1768, Peter Servis and twenty-four other persons had petitioned Governor Sir Henry Moore to buy, for their use, 25,000 acres of land from the Oneida Indians in Albany, now Herkimer, County.  The bill went on to state that for money or other valuable considerations, the petitioners agreed with Sir William Johnson that, on their getting the 25,000 acres, they would hold the same in trust for him, and duly convey the whole tract to him, provided he paid all costs, etc.  This plan was carried out in 1769, and Johnson got the land.

Le Roy and Bayard interjected their customary defense, namely, that after Johnson’s death, his son, Sir John Johnson, buried the papers so that they “ were wholly lost or rendered illegible,” and that Servis and his fellow settlers, aware of the fact, claimed the title, and attempted to get the property for themselves.  The higher court’s decision, in February, 1801, was in favor of Le Roy and Bayard,59 and the settlers were ousted.  These decisions, as will appear, have a deep bearing on later parts of this narrative.  Sir William Johnson obtained 93,000 acres, all told, by these particular fraudulent operations.  At one time Sir William Johnson’s total estate was so vast that he had a domain “ which made him, next to William Penn, the owner of the most extensive estate on the continent.”60  Considerable of this area, as has just been described, came into the possession of the Astor and other large landholding families of later times.


Landowners Become Lawmakers and Judges.


The great area of land thus obtained by fraud enabled the land magnates to set themselves up as the exclusive lawmaking and juridical class ;  this fact furnishes the explanation of why it was that, while the officials and their accessories were seizing land, they were at the same time passing laws providing the severest punishments for fraud and other offenses on the part of the generality of people.  In a communication, dated September 2o, 1764, to the Lords of Trade, at London, Lieutenant-Governor Cadwallader Colden, of New York, described how the land magnates had managed to usurp the lawmaking power by putting provisions in three of the large land grants guaranteeing to each Proprietor the privilege of sending a representative to the General Assembly.  Hence, these landed proprietors became hereditary legislators.  “ The owners of other great patents ;”  Colden further complained, “ being men of the greatest opulence in the several American counties where these Tracts are, have sufficient influence to be perpetually elected for those counties.  The General Assembly, then, of this Province consists of the owners of these extravagant grants ;  the merchants of New York, the principal of them strongly connected with the owners of those great Tracts by Family interest, and of Common Farmers, which last are men easily deluded and led away with popular arguments of Liberty and Privileges.  The Proprietors of the great tracts are not only freed from the quit rents which the other land-holders in the Province pay, but by their influence in the Assembly are freed from every other public Tax on their lands.”61


Lords Proprietors of New Jersey.


Virtually the same condition prevailed in all the colonies.  The whole of East New Jersey and other parts at one time belonged to a syndicate of twenty-four men, styling themselves “The Lords Proprietors of New Jersey.”  They professed to derive their title from a sale made to them in 1681 and 1682 by the widow of Phillip Carteret, the first Proprietary Governor.  Their claims were recognized in law ;  they made large sums of money in disposing of much of the land ;  and before and at the time of the Revolution they were a mighty financial, political and social influence in New Jersey,62 a fact which, as we shall have reason to note, had a close relation to the early composition of the Supreme Court of the United States.

These details give an insight into the methods of possessing estates in the northern colonies and the accompanying establishment of a landed aristocracy.


Extensive Seizures in Carolina and Georgia.


In Carolina and Georgia — then covering a vast extent of territory included in a number of the present Southern States — great estates were likewise being acquired by fraud.

Writing from Savannah to the Lords of Trade, at London, April 20, 1763, Governor James Wright referred heatedly to the “very extraordinary procedure of the Governor [Boone] of South Carolina,” in allowing the monopolization by a few of the most valuable areas of land.  “ I say, my lords,” Wright continued, “this procedure has struck a general damp, and dispirited the whole province.  I have called this, my lords, the death or destruction of the province ;  for an extension of limits to the southward, if the lands were properly parcelled out to people who would really cultivate and improve them, would draw some thousand inhabitants here ;  whereas, by this step taken in Carolina, great part of the lands, my lords, are ordered in large tracts to some wealthy settlers in Carolina, who probably will never see it themselves, and some of whom, it is said, have already more lands in that province than they can cultivate or improve.

“ This, my lords, is pretty well known on this side of the water ;  and who, having a great number of slaves, claim what they call their family right, that is, fifty acres of land for each slave, although it is highly probable that their ancestors had land for those very slaves, and it is well understood here that many of those persons, especially those who have the largest tracts, have no intention to remove there or settle them ;  but probably some years hence, when it begins to get valuable, will sell it, and in the meantime those vast tracts of land are to lie waste and unimproved, as very great bodies yet do in Carolina, and if they should do anything at all with those lands, it is expected that it will only be by sending an overseer and a few negroes just to make a trifling settlement, seemingly to comply with the terms of the grant or by way of taking possession.”63

Governor Wright estimated that Governor Boone had granted 343,000 acres to less than two hundred persons — many of them British lords or other speculators —“ strangers who have never contributed one farthing or one hour’s fatigue or hardship toward the support of the province.”64  The 343,000 acres held by a few recipients “ would accommodate a thousand very good families and settlers”;  hundreds of families were ready to come from North Carolina but could not get land.  Frauds and abuses in the survey of land were very numerous.


Governor Boone’s Plea and Explanation.


When called upon by the Lords of Trade to explain, Governor Boone of South Carolina wrote, on August 17, 1763, a long, abjectly apologetic letter, expressing his regrets at having committed and allowed abuses.  “ I hope, my lords,” he wrote in part, “ after what I have said, that your lordships will rather look upon it as my misfortune than my fault that I have incurred your displeasure.”  Claiming that he was actuated by honest motives, he went on to make this invidious, significant and self-protecting comparison, “ I have been Governor of this province above two years, with as many, if not more opportunities of benefiting myself than any of my predecessors ever had, had I chose to be remiss in my duty, as I have been strenuous in the practice of it.”65  The Lords of Trade directed that no extravagant warrants for land should be issued, and tried to break the large grants already made.  But their instructions came too late ;  the grants remained valid.

With this resumé of some of the conditions under which the landholding class — the dominant class of the Revolutionary period — obtained its immense holdings, we shall now proceed to consider the conditions formulated for the laboring, servant and slave classes, and the methods by which another class — the trading class — acquired its wealth, and its corresponding political and social sway.

At first the trading class was largely identical with the Patroons, and with the companies and the manorial lords of the other colonies who by virtue of their charters, powers and privileges held a monopoly of trading.  Even when the trading class began to reveal an independence of the landed class, the two were, nevertheless, often closely affiliated, and frequently comprised the same identity of interests.

All the conditions, the varied demands and contests, and the laws and traditions put in force by the governing classes, as well as the traditional subjugation of the working classes, were later reflected in the personnel of the Supreme Court of the United States selected to enforce and augment the powers by which the ruling classes benefited.




1 “ Plymouth Colony Laws ”: 82.

2 Ibid.

3 “ Ancient Charters and Laws of Massachusetts Bay, etc.”  Published By Order of the General Court, 1814.

4 “ Rhode Island Colonial Records, 1636-1663.”  Vols. I, II, etc., describe many instances.

5 “Connecticut Laws ;  Public Statute Laws” (Edition of 18o8), Vol. I : 434-435.

6 Ibid., 436.

7 Ibid., 436-437.

8 Ibid., 439.

9 Ibid., 439-441.

10 Ibid., 446.

11 Ibid., 444-445.  It was an act forbidding the sales of the real estate of heiresses without their consent.  Before that time, when heiresses married, their estates became the exclusive property of the husbands, and could be alienated or disposed of without the knowledge or consent of their wives.  Heiresses must have been in slighter demand after the passage of this act.

12 “ Documents Relating to the Colonial History of the State of New York,” Vol. IV: 673.

13 Ibid., 673-674.

14 Lodge’s “ A Short History of the English Colonies in America,” 402.

15 Donaldson’s “The Public Domain: Its History,” etc., 38.

16 With the litigation growing out of this condition, the Supreme Court of the United States was called upon to do some extensive judicial construction a century and a half later.  See case of Kirk vs. Smith, Wheaton’s Reports, Supreme Court of the United States, Vol. 257.

17 November 27, 1779.

18 Carey and Bioren’s Pennsylvania Laws, 1700-1770, Vol. II :  230-231.  This legislative resolution is further described later in this work.

19 Ibid., Vol. I:5.

20 Ibid., Vol. VI, Appendix : 54-55 and 61.  The social state of Pennsylvania under Quaker rule may be gleaned from the laws.  On February 7, 1700, thirteen acts were passed providing penalties for adultery, rape and various other sex crimes, bigamy, robbing and stealing, breaking into houses, the firing of houses, forcible entry, assault and battery, murder, spreading false news, defamation and other crimes.  These acts were repealed in 1705, and stricter laws enacted in that year, and in succeeding years.

21 “ The Revised Code of the Laws of Virginia,” Vol. II, Appendix II (Land Laws, Edition of 1819) : p. 345.

22 Ibid.

23 “ Revised Code, Laws of Va.,” (Edition of 1819) Vol. II, 346.

24 The circumstances of this contest bear the most pregnant and, perhaps, startling relation to the narrative of the Supreme Court of the United States, as will be completely seen later in this work.

25 Case of White vs. Jones, Washington’s Virginia Reports (Court of Appeals), Vol. I: pp. 116-117.  The decision in 1792, however, was in favor of the Jones grant, on the ground that so long a time had elapsed before the title was tested, and because fraud had not been definitely proved.  The Chief justice of this court was one of the greatest land jobbers and speculators of his time.  See later.

26 “ Revised Code, Laws of Va.” (Edition of 1819), Vol. I : 343.

27 Ibid.

28 “ Revised Code, Laws of Va.,” Vol. I: Chap. 3, p. 5.

29 Ibid., Chap. 4, p. 10.

30 See statement of the court, in 1793, in the case of Jacob Westfall vs. John Singleton, Washington’s Virginia Reports, Vol. I: 227.  Fairfax did a thriving and dubious land-office business.  He invited settlers in, promising them rights, and agreeing to convey land “ for three lives, renewable forever,” reserving to himself an annual rent.  But although the rent was paid, Fairfax refused to convey, and much litigation resulted.  (P. 228.)

31 Phillip Vickars Fithian’s “ Journal and Letters, 1767-1774.”  Fithian was a tutor in Carter’s family.  Robert Carter, the grandson, was, like the other large landholders, of the governing class ;  as a member of the Provincial Council he was active in the making of laws.

32 “ Revised Code of the Laws of Virginia,” Appendix II (Land Laws, Edition of 1819), P. 347

33 Ibid.

34 See Washington’s Virginia Reports (Court of Appeals), Vol. I, Preface.  Pendleton and his associates assigned their rights to other speculators.  Evidently the full sums due them were not paid ;  in March, 1799, Pendleton and Lewis brought suit to enforce payment of the sums due them from their assignees.  See, Rev. Code, Laws of Va., etc., Vol. II, Appendix II: 343.

35 American State Papers :  Public Lands, Vol. I : 37.

36 “Rev. Code, Laws of Va.,” Appendix II (Land Laws, Edition of 1819), P. 347.

37 See, Case of Coleman vs. Dick and Pat, Washington’s Virginia Reports, Vol. I: 239.

38 “Revised Code, Laws of Va.” (Edition of 1819), p. 347, etc.  Washington and his fellow officers received their patents in 1772 ;  the act of 1779 confirmed them.

39 Ibid.

40 O’Callaghan’s “History of New Netherlands,” Vol. I : 124.

41 Ibid., 125.

42 “Documents Relating to the Colonial History of the State of New York,” Vol. I: 89-100.  Fuller details of the conditions at this time are given in the “ History of the Great American Fortunes,” Vol. I : 12-22.

43 “ Documents Relating to the Colonial History of the State of New York,” Vol. IV: 463.

44 Bayard was reputed to be the go-between in arranging with the sea pirates the price to be paid by them in return for Fletcher’s protection.

45 “Documents Relating to the Colonial History,” etc., Vol. IV: 535.

46 Ibid., 39.

47 Ibid., 528.

48 George W. Schuyler’s “ Colonial New York,” Vol. I : 285-286.

49 “Documents Relating to the Colonial History of the State of New York,” Vol. IV: 533-534.

50 “The Lives and Bloody Exploits of the Most Noted Pirates,” 177-183.  This work, published a century since, was a serious study of the various sea-pirates.

51 “ The Case of Lewis Morris, Esq., Late Chief Justice of the Province of New York, etc.:  To Be Heard Before The Lords of Committee on Plantation Affairs.”  This document was published as a broadside.

52 Case of People of the State of New York vs. George Clarke, Barbour’s Supreme Court Reports (New York), Vol. X: 125.

53 Ibid., 120-156.  This case, and other similar actions, were brought at a time following the outbreak of the “ Anti-Renters’ War ” in New York, when the tenants of the great estates revolted against the feudal customs, laws and exactions still prevailing.  In deciding the case, November 25, 1850, judge Cady (who had been put on the bench by the landholding class) did not attempt to controvert the charges of fraud.  He decided against the State on this ground :  “ It would be an alarming doctrine to hold that every man in the State who holds any land under a grant before the Revolution, may be turned out of possession by the plaintiffs, if a king was cheated, who, one or two hundred years since, made the grant” (page 152). Judge Cady held further that the action was outlawed by the statute of limitations.

54 The law, at this time, seems to have limited the amount to be granted to any one settler at not more than 1,000 acres.

55 Johnson’s Cases (Court for the Trial of Impeachments and Correction of Errors) [N.Y.], Vol. I: 417-429.

56 Ibid. It may be observed here that Chancellor Kent, that preeminent expounder of the all-pervading rights of property, studied law under Judge Benson.

57 Aaron Burr, at this time, was one of the leading and most adroit Republican politicians in New York State.  (The Republican Party of that day was the predecessor of the Democratic Party of later times.)  Edward Livingston, Spencer (later Chief Justice of New York) and other noted lawyers appeared in these cases for the respondents.  Evidently, there was some conflict of great interests not altogether stated in the court records.
      Burr lived next door to Astor at No. 221 Broadway.  It was Burr who consummated an adroit piece of business by which Astor became possessed of a lease of 465 lots of land, of later immense value, in New York City.  In the year 1767 Trinity Church had leased these lots for 99 years to Abraham Mortier at a total annual rental of $269 a year ;  the lots were in the district now bounded by Greenwich, Spring and Hudson Streets.  Upon the initiative of Burr, the Legislature, in 1797, determined upon an investigation as to how Trinity Church was expending its income.  Of all things Trinity Church wanted no investigation of its affairs.  It succeeded in suppressing any actual inquiry.  Presently Burr turned up with a transfer of the Mortier lease to himself, and pledging it as security he obtained a $38,000 loan from the Manbattan Bank.  When after his duel with Hamilton, Burr was forced to flee, Astor obligingly took this extraordinarily valuable lease off Burr’s hands.  The lease covered land in the business and residential district, and as the city rapidly grew and land values tremendously increased, it was a source of great revenue to Astor and his descendants.—For the full account with citations from official records see “History of the Great American Fortunes,” Vol. I ; 167-168.

58 Johnson’s Cases, etc., Vol. I : 429-435.

59 Caine’s Cases (Court for the Trial of Impeachments and Correction of Errors) [New York], Vols. I-II: pp. 3-7.

60 Roberts’ “New York,” Vol. II: 623.

61 “ Documents Relating to the Colonial History of the State of New York," Vol. VII: 654-655.

62 As late as 1884 the descendants of these Proprietors held a reunion meeting in New Jersey, claiming (but it is not to be supposed seriously) that their inherited rights as Proprietors were still valid.  They published their proceedings in a pamphlet.

63 “American State Papers :  Public Lands," Vol. I : 55.

64 Ibid.

65 Ibid., 53-54.